47 Ind. App. 646 | Ind. Ct. App. | 1911
— Appellee brought this action against appellant to recover damages for the death of her decedent, Franklin C. Myers, resulting from the alleged negligence of appellant in running one of its ears against the decedent at a highway crossing. A complaint in one paragraph, answered by a general denial, formed the issues submitted to a jury, resulting in a verdict and judgment in favor of appellee. Appellant’s motion for a new trial was overruled, and this ruling is assigned as error. Under this assignment the questions discussed, and the errors relied on for a reversal of the judgment, are presented.
The jury found that decedent was not guilty of contributory negligence. We are asked to disturb this finding on the theory that the evidence affirmatively and conclusively shows that decedent was actively and contemporaneously at fault at the time the alleged wrongful injury was inflicted.
In this case, decedent was acquainted with the crossing, and was bound to know of the attendant dangers in attempting to cross. He was required to be vigilant in the use of his senses to avoid injury, therefore it was his duty to look and listen for approaching cars, and his failure so to do, without an excuse therefor, will be regarded as an act of negligence, which, if it proximately contributed to his injury, will preclude a recovery. Chicago, etc., R. Co. v. Hedges (1886), 105 Ind. 398, 406; Chicago, etc., R. Co. v. Hedges (1889), 118 Ind. 5; Wabash R. Co. v. Keister (1904), 163 Ind. 609; Malott v. Hawkins, supra; Southern R. Co. v. Davis, supra.
In the case last cited it is said: “A casualty resulting in the personal injury or death of a traveler from contact with cars at such place is necessarily occasioned by the concurrent acts of two parties, and in actions therefor, by their pleadings each in terms or legal effect charges the other with negligence contributing to the result. In such actions neither party has a prima facie cause of action or defense, unless it be shown that the proximate cause of the injury was the violation of a statute or municipal ordinance, and otherwise the court cannot indulge a presumption of law that the implicated act or omission of either party was prudent and cautious or negligent and wrongful, but the inference of negligence or its absence is an ultimate fact to be determined by the trial court or jury.”
In the case of Malott v. Hawkins, supra, it is said: “A further proposition, based on the reciprocal rights of the railway company and a traveler at a public crossing, is that after a traveler has vigilantly used his senses to avoid danger, as stated above, and is unable to see or hear any approaching train, he may, while still exercising due care, assume that the company will not omit to give the usual,
This is not a case where the undisputed evidence shows that decedent by looking could have seen, or by listening could have heard the approaching car in time to avoid the collision.' For that reason cases in which the conclusion rests upon the assumption that a traveler approaching the crossing actually saw what he could have seen had he looked, and heard what he could have heard had he listened, are not in point. Grand Trunk, etc., R. Co. v. Reynolds (1911), 175 Ind. 161. After a careful consideration of the evidence in this case, we are not persuaded that reasonably fair-minded men would not honestly differ in their conclusions regarding the quantum of care which decedent should have exercised. The question submitted on the evidence is not one of law. Indianapolis St. R. Co. v. Marschke (1906), 166 Ind. 490; Evansville, etc., R. Co. v. Berndt, supra.
This instruction is criticised on the ground that it brings into the case the doctrine of “last clear chance” without a complaint or facts adduced at the trial to warrant it. To support the instruction, we are referred to that part of the complaint, which, after alleging the negligence of appellant in several particulars, especially in failing to give the statutory crossing signal, reads as follows: “That when her said decedent was upon said crossing as aforesaid, defendant negligently ran one of its cars toward and onto said crossing at a high and dangerous rate of speed, and did negligently so run said car against said horses and wagon of plaintiff’s decedent on said crossing, and did thereby negligently knock plaintiff’s decedent out of said wagon, and crush and destroy said wagon, and did thereby inflict mortal injuries upon the body of plaintiff’s said decedent as aforesaid, from which he died as aforesaid on December 5, 1906.”
It will be noticed that this complaint contains no direct allegation showing that appellant was aware of decedent’s danger in time to stop the car and avoid the injury. It is alleged that “defendant negligently ran one of
In the case of Indianapolis St. R. Co. v. Marschke, supra, the court had before it the same question we are now considering, and presented in the same way. In disposing of the question it was said: “Appellee had a right, having offered evidence in support of the gist of her charge, to have the question of negligence submitted to the jury, either as she had characterized it or in accordance with the gravamen of the allegation.”
In the case of Indianapolis Traction, etc., Co. v. Kidd (1906), 167 Ind. 402, 7 L. R. A. (N. S.) 143, the same question arose on the answers of the jury to interrogatories. In that ease it was said: “ It is no departure from just principles, but a wholesome and humane doctrine, to hold, that- if after the defendant knew, or in the exercise of ordinary care ought to have known, of the plaintiff’s negligence, he could have avoided the accident, but failed to do so, the plaintiff can recover.”
Judgment affirmed.